Right and Necessity: Fr. Neuhaus on Abortion and the Popular Vote

Suppose, in a democracy, the majority of the people desire and vote for abortion. Should the governing authorities then give them abortion? Or should the governing authorities un-democratically impose pro-life laws from the top down, such as, e.g., through Supreme Court decisions and executive orders? Put another way, must a democratic state protect all persons from murder, even if the large majority of its population believes in and desires to exercise a right to murder certain persons?

Put that way, the answer should be obvious: unequivocally yes.

But Fr. Richard John Neuhaus is unfortunately equivocal. In "The Politics of Bioethics," First Things, November 2007, p. 25, he states emphatically that it is right and necessary that the abortion question should be decided "politically", i.e., by means of voting. He speaks almost as though there were some sort of moral imperative that pro-life laws should be enacted only through democratic means, as an exercise of the popular sovereignty of a convinced pro-life people. Further, Fr. Neuhaus justifies his opinion, not by any principle of Catholic moral theology, but by the teaching of the United States Constitution. His exact words are as follows:

The question, then, is, Who belongs to the community for which we as a community accept responsibility, including the responsibility to protect, along with other natural rights, their right to life? This is a preeminently political question. It is not a question to be decided by bioethicists. Bioethicists, by virtue of their disciplined attention to such questions, are in a position to help inform political deliberations and decisions about these matters, but these questions are - rightly and of necessity - to be decided politically. They are rightly so decided because our constitutional order vests political sovereignty in the people, who exercise that sovereignty through prescribed means of representation. They are of necessity so decided because in this society the views of moral philosophers - whether trained as such in the academy or acting as such on the bench - are not deemed to be determinative. Witness the democratic non-ratification of the Supreme Court's imposition of the unlimited abortion license.

To say that such decisions are rightly decided politically is not to say that the resulting decisions will always be morally right. Those who disagree with the decisions that are made must make their case in the political arena.

Against these disturbing words I launched the following missive, which was published, with the following response from Fr. Neuhaus, in the February 2008 First Things:

God's Legitimate Authority

Fr. Neuhaus opines that it is right and necessary that the question of whose right to life must be protected should be decided politically. This is allegedly so "because our constitutional order vests political sovereignty in the people." The American constitutional order leaves much to be desired, as Pope Leo XIII noted in Longinqua Oceani. Indeed, it derives from a fundamental philosophical error, one directly contradictory to Scripture: "There is no authority except from God, and those which exist are established by God" (Rom. 13:1).

The sovereignty of states comes from above, not from below, from God, and not from the consent of the governed. Hence, laws must not be "framed according to the delusive caprices and opinions of the mass of the people, but by truth and by justice" (Leo XIII, Immortale Dei). The state is obliged to impose the morally right law, which protects all persons from murder, regardless of what percentage of the population believes that certain persons should not be protected from murder. To claim that it is right to leave the fate of countless innocents in the hands of a popular vote is morally repugnant. Whoever has power has it from God and is obliged to use it forthwith to stay the executioner's hand. Discourse aimed at persuading the majority of the population of the rightness of the pro-life position need not precede whatever action is necessary to stop the bleeding.

Ben Douglass
Herndon, Virginia

RJN replies:

Mr. Douglass states succinctly a problem that many Catholics and other Christians have with the American constitutional order. That order does, indeed, leave much to be desired, as do all temporal orders short of the promised Kingdom of God. All legitimate authority is from God, and, in the liberal democratic tradition of which our polity is part, the people are the political sovereign and the state is their servant. In the continuing development of Catholic social doctrine, as articulated in, for instance, the 1991 encyclical Centesimus Annus, the people and their representatives are to ensure that laws are in conformity with the natural law discerned by the gift of reason.

I have little to say about Fr. Neuhaus' response. It, like the statement in his original article, is confusing and equivocal. But one thing is for sure. After reading this response, it has become clear to me that I should have used much stronger words than "The American constitutional order leaves much to be desired." For the American constitutional order is not only less than perfect. Indeed, it rests on a principle which is intrinsically unjust and in violation of the virtue of religion and which therefore has been repeatedly and irrevocably condemned by the perennial magisterium of the Roman Catholic Church, namely, the separation of Church and state. See the quotes in the appendix below (which could easily be multiplied). Hence, the American constitutional order cannot be used as a moral reference frame based upon which a Catholic may construct arguments about what is right and necessary, as Fr. Neuhaus does. What is right and necessary we know, not from the Constitution, but from Catholicism: the government should protect all persons from murder, with or without the consent of the governed. To place the lives of innocent babies at the mercy of a popular vote is emphatically neither right nor necessary.

"Nor can We predict happier times for religion and government from the plans of those who desire vehemently to separate the Church from the state, and to break the mutual concord between temporal authority and the priesthood. It is certain that that concord which always was favorable and beneficial for the sacred and the civil order is feared by the shameless lovers of liberty" (Gregory XVI, Mirari Vos, 20).

Condemned Proposition: "The Church ought to be separated from the State, and the State from the Church" (Bl. Pius IX, The Syllabus of Errors, 55).

"We shall not hold to the same language on another point, concerning the principle of the separation of the State and Church, which is equivalent to the separation of human legislation from Christian and divine legislation. We do not care to interrupt Ourselves here in order to demonstrate the absurdity of such a separation; each one will understand for himself. As soon as the State refuses to give to God what belongs to God, by a necessary consequence it refuses to give to citizens that to which, as men, they have a right; as, whether agreeable or not to accept, it cannot be denied that man's rights spring from his duty toward God. Whence if follows that the State, by missing in this connection the principal object of its institution, finally becomes false to itself by denying that which is the reason of its own existence. These superior truths are so clearly proclaimed by the voice of even natural reason, that they force themselves upon all who are not blinded by the violence of passion; therefore Catholics cannot be too careful in defending themselves against such a separation. In fact, to wish that the State would separate itself from the Church would be to wish, by a logical sequence, that the Church be reduced to the liberty of living according to the law common to all citizens....It is true that in certain countries this state of affairs exists. It is a condition which, if it have numerous and serious inconveniences, also offers some advantages -- above all when, by a fortunate inconsistency, the legislator is inspired by Christian principles -- and, though these advantages cannot justify the false principle of separation nor authorize its defense, they nevertheless render worthy of toleration a situation which, practically, might be worse" (Leo XIII, Au Milieu des Sollicitudes, 28).

"But, moreover (a fact which it gives pleasure to acknowledge), thanks are due to the equity of the laws which obtain in America and to the customs of the well-ordered Republic. For the Church amongst you, unopposed by the Constitution and government of your nation, fettered by no hostile legislation, protected against violence by the common laws and the impartiality of the tribunals, is free to live and act without hindrance. Yet, though all this is true, it would be very erroneous to draw the conclusion that in America is to be sought the type of the most desirable status of the Church, or that it would be universally lawful or expedient for State and Church to be, as in America, dissevered and divorced. The fact that Catholicity with you is in good condition, nay, is even enjoying a prosperous growth, is by all means to be attributed to the fecundity with which God has endowed His Church, in virtue of which unless men or circumstances interfere, she spontaneously expands and propagates herself; but she would bring forth more abundant fruits if, in addition to liberty, she enjoyed the favor of the laws and the patronage of the public authority" (Leo XIII, Longinqua Oceani, 6).

"Wherefore, civil society must acknowledge God as its Founder and Parent, and must obey and reverence His power and authority. Justice therefore forbids, and reason itself forbids, the State to be godless; or to adopt a line of action which would end in godlessness-namely, to treat the various religions (as they call them) alike, and to bestow upon them promiscuously equal rights and privileges. Since, then, the profession of one religion is necessary in the State, that religion must be professed which alone is true, and which can be recognized without difficulty, especially in Catholic States, because the marks of truth are, as it were, engraven upon it. This religion, therefore, the rulers of the State must preserve and protect, if they would provide-as they should do-with prudence and usefulness for the good of the community" (Leo XIII, Libertas, 21).

"That the State must be separated from the Church is a thesis absolutely false, a most pernicious error. Based, as it is, on the principle that the State must not recognize any religious cult, it is in the first place guilty of a great injustice to God; for the Creator of man is also the Founder of human societies, and preserves their existence as He preserves our own. We owe Him, therefore, not only a private cult, but a public and social worship to honor Him. Besides, this thesis is an obvious negation of the supernatural order. It limits the action of the State to the pursuit of public prosperity during this life only, which is but the proximate object of political societies; and it occupies itself in no fashion (on the plea that this is foreign to it) with their ultimate object which is man's eternal happiness after this short life shall have run its course. But as the present order of things is temporary and subordinated to the conquest of man's supreme and absolute welfare, it follows that the civil power must not only place no obstacle in the way of this conquest, but must aid us in effecting it... Hence the Roman Pontiffs have never ceased, as circumstances required, to refute and condemn the doctrine of the separation of Church and State" (St. Pius X, Vehementer Nos, 3).

"At the outset, the absurd and monstrous character of the decree of which We speak is plain from the fact that it proclaims and enacts that the Republic shall have no religion, as if men individually and any association or nation did not depend upon Him who is the Maker and Preserver of all things; and then from the fact that it liberates Portugal from the observance of the Catholic religion, that religion, We say, which has ever been that nation's greatest safeguard and glory, and has been professed almost unanimously by its people. So let us take it that it has been their pleasure to sever that close alliance between Church and State, confirmed though it was by the solemn faith of treaties" (St. Pius X, Iamdudum, 3).

"But, returning to the deplorable laws regarding religious confessions and Congregations, We learned with great sorrow that therein, at the beginning, it is openly declared that the State has no official religion, thus reaffirming that separation of State from Church which was, alas, decreed in the new Spanish Constitution. We shall not delay here to repeat that it is a serious error to affirm that this separation is licit and good in itself, especially in a nation almost totally Catholic. Separation, well considered, is only the baneful consequence-as We often have declared, especially in the Encyclical Quas Primas-of laicism, or rather the apostasy of society that today feigns to alienate itself from God and therefore from the Church" (Pius XI, Dilectissima Nobis, 6).